Everett v. United States

• Decision Date: 13 June 1980
• Docket Number: No. C-2-79-127.,C-2-79-127.
• Citation: 492 F. Supp. 318
• Parties: Marjorie L. EVERETT, surviving spouse and Executrix of the Estate of Bert E. Everett, Deceased, Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. District Court — Southern District of Ohio

492 F. Supp. 318

Marjorie L. EVERETT, surviving spouse and Executrix of the Estate of Bert E. Everett, Deceased, Plaintiff, v. The UNITED STATES, Defendant.

No. C-2-79-127.

United States District Court, S. D. Ohio, E. D.

June 13, 1980.

Jack J. McClelland, Zanesville, Ohio, for plaintiff.

Albert R. Ritcher, Asst. U.S. Atty., Columbus, Ohio, for defendant.

OPINION AND ORDER

DUNCAN, District Judge.

This is an action for damages against the United States. The plaintiff, Marjorie L. Everett, is the surviving spouse and executrix of the estate of her deceased husband, Bert E. Everett. The claim arises out of plaintiff's decedent's participation, as an enlisted man in the United States Air Force, in military maneuvers held in 1953 in conjunction with nuclear weapons tests at Yucca Flats (Camp Desert Rock), Nevada. Plaintiff claims that her decedent, along with other servicemen, was ordered to march through a nuclear blast area less than an hour after detonation of a nuclear device, resulting in their exposure to large and hazardous doses of radiation. As a proximate result of this exposure, plaintiff claims, her husband was stricken with cancer. He died in 1977. Plaintiff seeks damages for decedent's wrongful death, for loss of consortium, lost wages, and for medical and funeral expenses. The sole defendant in this case is the United States of America. The matter is presently before the Court on the defendant's motion to dismiss.

The Court has benefited by the briefs and memoranda of the parties and by oral argument. Upon consideration, and for the reasons stated below, the motion will be granted in part and denied in part.

At the outset the Court notes that the questions raised in this case present matters of the utmost national concern, now increasingly being brought to light in legislative and judicial forums. Recent disclosures concerning the possible disastrous effects upon humans of such chemicals as "Agent Orange," a defoliant used in Vietnam, as well as exposure to atomic radiation and drugs such as LSD, raise concerns about the government's responsibility to its citizens, and servicemen, when such materials are tested or used by the military or other governmental agencies. With this in mind, the Court will turn to the issues at hand.

Plaintiff's complaint sets forth her claims in five counts. Count I is a claim for medical expenses and lost wages alleging that the defendant acted "negligently, willfully and wantonly" in ordering the decedent's participation in maneuvers which caused him to be exposed to harmful radiation. Counts II and III seek damages for plaintiff's loss of consortium due to the illness allegedly caused by the decedent's exposure to radiation and due to his eventual death from that cause. The jurisdictional basis asserted for Counts I, II and III is the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. By subsequent amendment plaintiff has added additional Counts IV and V. Count IV, also seeking damages for decedent's exposure to radiation, asserts jurisdiction arising directly under the Fifth and Ninth Amendments to the United States Constitution as well as under the Tort Claims Act. Count V alleges that the defendant was negligent in failing to warn the decedent of the harm which could result from his exposure to the nuclear radiation. Jurisdiction over this count is also asserted under both the Act and the Fifth and Ninth Amendments.

I. The Feres Doctrine

At the heart of the present inquiry is the question whether plaintiff's claimed cause of action is barred by the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and its progeny. In Feres the Supreme Court recognized an exception to the government's waiver of immunity under the Federal Tort Claims Act where military service personnel sue the United States for service-connected injuries. As stated by the Court, the exception provides that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159.

On its face the Feres bar would appear to sound the death knell for plaintiff's claims, at least insofar as they assert jurisdiction under the Tort Claims Act. Plaintiff, however, argues that her case is shielded from Feres, basically for three reasons. First, she claims the tort inflicted upon her husband was willful, wanton and reckless, not merely negligent, and that such purposeful and reckless "human experimentation" cannot be deemed to be incident to normal military service. Second, plaintiff claims that in any event Feres would not bar her claims brought directly under the Constitution, rather than under the Act, and finally, she contends that Count V, alleging a negligent failure to warn the decedent, occurred after his discharge from the service and therefore is outside the purview of the Feres doctrine. The Court will deal with these issues in turn.

A.

Initially the Court must reject plaintiff's argument that a reckless tort committed against a serviceman somehow removes the case from the application of the Feres doctrine. The rationale of Feres simply does not permit a principled distinction among torts based on the level of culpability of the tortfeasor. In its recent reaffirmation of the Feres rule, in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (Stencel), the Supreme Court explicated the three-pronged foundation of the doctrine as follows:

First, the relationship between the Government and members of its Armed Forces is "distinctively federal in character" ... it would make little sense to have the Government's liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stationed at the time of the injury. Second, the Veterans' Benefits Act establishes, as a substitute for tort liability, a statutory "no fault" compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government. A third factor was explicated in United States v. Brown, 348 U.S. 110, 112 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954), namely, "the peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty ...."

431 U.S. at 671-72, 97 S.Ct. at 2058. These considerations apply with equal vigor to a claim alleging reckless or even intentional torts. Thus, whether the tort alleged is reckless, intentional or negligent, the liability of the United States would still be dependent, pursuant to 28 U.S.C. § 1346(b), on the fortuity of the situs of the tort, a factor which undercuts the "distinctively federal" nature of the relationship between the United States and its military forces. See, Stencel at 672, 97 S.Ct. at 2058. Further, victims of military recklessness also have available to them the various benefits accorded under the Veterans Benefits Act, 38 U.S.C. § 301 et seq., as do victims of other injuries incurred incident to service. See Jaffee v. United States, 592 F.2d 712, 716-17 (3d Cir. 1979) (Jaffee I).

Finally, it is the existence of the "peculiar and special relationship," United States v. Brown, 348 U.S. at 112, 75 S.Ct. at 143, between the soldier and his superiors which is at the heart of Feres and "best explains," United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 1857-1858, 10 L.Ed.2d 805 (1962), the reason for the broad immunity recognized by the Supreme Court. Suits alleging intentional or reckless tortious conduct would be as disruptive of this special relationship as suits based on negligence. "It is the suit, not the recovery," that is the disruptive factor. Henninger v. United States, 473 F.2d 814, 815-16 (9th Cir. 1973). The present case is a paradigm of this. Unlike Feres itself and its companion cases, which involved, respectively, a serviceman sleeping in a barracks who died due to alleged negligence in the maintenance of a heating plant, and two servicemen who were victims of alleged medical malpractice, this action arises out of injuries allegedly incurred during actual military maneuvers in the field. Short of combat, this situation implicates the military's special requirement of discipline and order in its purest form. The effect of permitting members of the armed forces to challenge the wisdom of military orders to which they are subjected by means of subsequent tort suits was summarized recently as follows:

If claims for injuries sustained by members of the armed forces in the execution of military orders were subjected to the scrutiny of courts of justice, then the civil courts would be required to examine and pass upon the propriety of military decisions. The security and common defense of the country would quickly disintegrate under such meddling. "Actions and essential military discipline would be impaired by subjecting the command to the public criticism and rebuke of any member of the armed forces who chose to bring a suit against the United States."

Jaffee I, supra, 592 F.2d at 717 (citation omitted). The effect is no different when plaintiff claims, as here, that the activity complained of is so reckless as to be outside the boundaries of duty reasonably connected with the United States Air Force. Courts hearing such claims would still be in the position of "examining and passing upon the propriety of military decisions," id., a result not permitted by Feres.

To the extent Feres and its successors have decided to insulate military activity from judicial review, the Court has no warrant to intrude, despite inequities which may nevertheless remain. This case is not unique in alleging reckless or intentional...